Abstract

Informations and abstract

The history of the judiciary is studded with studies carried out, especially (though
not only) in Italy, with the methods of a juridical overall perspective, and aim at reconstructing
the normative institutes and the formal functioning of the judicial institutions.
But the analysis of official sources is not useful to unearth the hidden power, which by
definition leaves no trace, and when it does it is intended not to clarify but to mislead.
Therefore the historiography (especially legal) on the judiciary often makes methodological
mistakes that are missing the core of the problem. The heart of the matter, in
fact, lies in the arcane transformation of the jurisdiction into political power, a power
that formally denies to be such and therefore is understood to be disguised and arcane,
and therefore out of control and unaccountable. To identify the crucial points of historical
research on the judiciary therefore means to deal with these basic historiographical
distortions and to propose an alternative method that employs research tools and
hermeneutic tools much broader than mere normative analysis. New interdisciplinary
elements that the culture and ideology of lawyers traditionally considered alien to the
purity of the legal science, and therefore insignificant even for the historical reconstruction,
enter the picture. Historical reconstruction is also strongly affected by an
uncritical and technocratic positivism and comes to deform the correct description of
reality. The reconstruction of the history of the judiciary, on the contrary, needs a method
that combines an interdisciplinary approach with a long term vision, and is able to overcome
a formidable paradox: to shed light on a power which by its nature is intended to
be shrouded by the dark.